Types of Intellectual Property Owned by Business Professionals
Intellectual property is not the exclusive province of the dot.com companies. Nearly all business enterprises have valuable intellectual property assets. The names of planned products or goods, anticipated advertising slogans, valuable forms and checklists, and training materials should all be protected. Each division or department within a company probably is using valuable intellectual property assets, and each should conduct a thorough audit of its assets. Although Chapter 20 provides information on conducting an intellectual property audit, a brief introduction to the types of intellectual property used by various business groups is helpful.
Sales and Marketing Departments
A company's sales and marketing department may possess a wide variety of intellectual property assets, including names, slogans, marketing materials, advertisements, and similar materials. A name by which the department refers to a product or service may be protectable. For example, if the sales and marketing group is informally referring to a planned financial service the company will offer as ''Capital Ideas,'' the name should be considered for trademark protection. Slogans such as ''We Bring Your Savings Home'' can be similarly protected. Sales and marketing professionals should be encouraged to review the company's letterhead, marketing brochures, and any other literature to determine whether the company is already using trademarks, designs, logos, and slogans.
Brochures, ad copy, anticipated radio and television promotions, and other materials that are in the planning stage should be identified to ensure that they are protected against inadvertent disclosure or leaking to competitors. Such materials should not be released to focus groups or others without a nondisclosure agreement by which the reviewer agrees not to disclose the information. Similarly, new products, such as snack foods or computer programs, should not be test-marketed unless nondisclosure agreements have been signed. Those who assist the sales and marketing group in developing materials, such as independent contractors developing a new company logo, should be required to assign any rights in the work product to the company and to agree to protect the product from disclosure. During the planning stage, these materials are protectable as trade secrets. Once created in a fixed form, they are subject to copyright protection.
Power Point® presentations and other slides, movies, and audiovisual materials used by a company are protectable as copyrightable works. Although live sales pitches and presentations are not protectable under copyright law, written materials that accompany those presentations are.
Human Resources Departments
A company's human resources group may have a wide variety of forms and materials that can be protected through copyright. The company's employee handbook is subject to copyright protection, as are any forms the company uses, as long as those forms are more than blank template forms. If a company uses written materials explaining its mentoring program or termination procedures, they can also be protected. Similarly, forms and checklists used by recruiters in qualifying and hiring candidates and the forms the company uses for exit interviews can be protected.
Contracts and Administrative Departments
The contractual forms a company uses are protectable under copyright law. Although contracts can be drafted easily and many companies use composite forms drawn from forms they have seen others use, care should be taken to ensure that the forms are released only to those who need to use them. For example, a company may want to avoid sending its form contracts and templates by e-mail because such forms can then be disseminated to thousands of others. Some companies insist on a mail-only policy for their key contract documents.
If the company has a formalized written methodology explaining the way it conducts its business, these materials are protectable as trade secrets and should not be released to anyone except those who have a demonstrated need to know the information and have signed agreements promising to protect the information. Logs should be kept identifying the employees who have been given the methodology materials, and the materials should be collected from employees who leave the company.
Training materials and handbooks prepared for managers also are protectable. The company's contracts and administrative groups should assess the written materials they use to identify valuable intellectual property resources.
Graphics, Production, and Information Services Departments
A company's graphics department may be creating valuable logos, designs, and artwork that can be protected. Similarly, care should be taken to ensure that all material posted on the company's Web site is original and is not taken from any other source or site and that only nonconfidential information is displayed on the site. For example, case studies that specifically identify one's clients give competitors a chance to review what a company has done and then target the client with a different or cheaper approach. Moreover, agreements with clients may prohibit identifying them in such a public manner. Identifying the company's employees on a Web site invites soliciting and poaching of these valuable human assets. The Web site content itself is copyrightable, and terms and conditions for use of the site should be included on the site as well as a copyright notice stating that the site is subject to copyright protection.
Research and Development Departments
A company's research and development group may be sitting on a gold mine of valuable intellectual property assets. Because patent law covers new and useful inventions and processes and improvements to existing inventions and processes, all work conducted by the research and development team should be considered trade secrets during the formative stage and should then be considered for patent protection as it nears completion. Because patent law protects only new inventions, once an invention is in public use, is offered for sale in the United States, or is described in a printed publication anywhere in the world, the inventor has only one year within which to file a patent application. Failure to file within this oneyear grace period precludes the inventor from obtaining patent protection, and the invention enters the public domain.
Employees in the company's research and development group should maintain accurate laboratory notebooks describing their work and progress. These notebooks can be used to demonstrate the originality of the work and the date of its completion for the purpose of obtaining a patent.
Other Departments
Other groups or departments within a company may use and develop intellectual property. Group leaders and managers should be urged to carefully consider the names and designs they use for company products and services, the written materials and forms they use in their work, any new inventions or business methods they have implemented, and any improvements to existing inventions or business methods. Once the company has identified its intellectual capital, it can protect it and use it to increase revenue.